242 U.S.

272
37 S.Ct. 79
61 L.Ed. 294

LONG SAULT DEVELOPMENT COMPANY, Plff. in Err.,

v.
HOMER D. CALL (as Successor of John J. Kennedy), as
Treasurer of the State of New York, Deft. in Err.
No. 49.
Argued April 14 and 17, 1916.
Reargued October 31, 1916.
Decided December 11, 1916.

Messrs. Henry W. Taft and Francis Sims McGrath for plaintiff in error.
Messrs. Merton E. Lewis, C. T. Dawes, and Mr. E. E. Woodbury,
Attorney General of New York, for defendant in error.
Mr. Justice Clarke delivered the opinion of the court:

This proceeding was commenced in the supreme court of New York by the
Long Sault Development Company, hereinafter called the plaintiff, for the
purpose of testing the constitutionality of an act of the legislature of that state,
passed in 1907, to incorporate the plaintiff and to grant to it important rights in
the bed of, and with respect to the use of the waters of, the St. Lawrence river.
Laws of 1907, chap. 355.

The case is now in this court on the claim that this Act of 1907 is a valid law,
and that the property rights springing from the grants therein and the acceptance
of them by the plaintiff were impaired by a later act, passed in 1913, purporting
to repeal the Act of 1907, and by the effect given to this later act by the
decision of the court of appeals, rendered in June, 1914.

The title of the Act of 1907 indicates the comprehensive character of the grants
which the legislature attempted to make by it. It reads as follows: 'An Act to
Incorporate the Long Sault Development Company, and to Authorize Said

Company to Construct and Maintain Dams, Canals, Powerhouses, and Locks at

or near Long Sault Island, for the Purpose of Improving the Navigation of the
St. Lawrence River and Developing Power from the Waters Thereof, and to
Construct and Maintain a Bridge, and Carry on the Manufacture of
Commodities.'
4

The act proceeds, first, to incorporate the Long Sault Development Company,
giving it perpetual corporate existence, and then in terms to authorize it to
construct, maintain, and operate dams, canals, reservoirs, and the appurtenances
necessary or useful for the purpose of developing water power and electrical
energy, at such point or points adjacent to the south shore of the St. Lawrence
river, and in and upon the river bed near Long Sault island or Barnhart's island,
as may be selected by the company; to erect and maintain power houses and
electrical transmission appliances; and to construct a bridge or bridges across
the river, in connection with the dam authorized, and to charge tolls for passage
thereon.

These important rights are declared to be granted upon various specified

conditions, the most important of which is 'that the rights hereby granted shall
never be so used as to impair or obstruct the navigation of the Saint Lawrence
river, but, on the contrary, that such navigation shall be preserved in as good
condition as, if not better than, the same is at present, regard being always had
to the amount of the natural flow of water in said river as affecting its
navigability from time to time.' [Section 3.]

The act further provides that, after the Congress of the United States shall
authorize the construction of the proposed dams, locks, and canals, and after
the payment of certain sums of money into the state treasury, then the
Commissioners of the Land Office shall, upon application of said corporation, '
grant unto it the title and interest of the people of the state in and to lands
under the waters of the Saint Lawrence river to be covered or occupied by said
works and locks and power houses.' [Section 4.] The payments to be made,
after the year 1911, shall be not less than $25,000 for each year. The petition
alleges that the river at Long Sault rapids is now practically unnavigable, being
navigated only by light draft passenger vessels down stream during the summer
tourist season, and that all other traffic up and down the river passes around the
rapids by wat of the Cornwall canal, on the Canadian side of the river.

The plaintiff was duly organized as a corporation, and expended a large sum of
money in preparing to utilize the grants of the act.

By an act which became a law on the 8th day of May, 1913, the legislature of

By an act which became a law on the 8th day of May, 1913, the legislature of
the state in terms repealed this Act of 1907, under which the plaintiff in error is
claiming.

Almost three months before this repealing act was passed, this suit was
commenced by the filing of a petition in the supreme court of New York,
praying for a writ of mandamus, to be directed to the treasurer of that state,
requiring him to receive as a payment into the treasury of the state the sum of
$25,000, as a sum due and payable on February 1st, 1913, for the year 1912,
under the provisions of the Act of 1907, which sum had theretofore been
tendered to the treasurer and had been by him refused, for the reason, it is
alleged, that he had been advised by the attorney general of the state that said
act was unconstitutional and void. The application of the petitioner for a writ of
mandamus was denied by the supreme court, and this decision was affirmed by
the appellate division and by the court of appeals, which ordered the record in
the case remitted to the supreme court, to be proceeded upon according to law.

10

Up to this time there is nothing in the record before us to indicate that any
question was presented to the state courts, excepting the single one as to
whether or not the Act of 1907 was valid under the Constitution of the state of
New York.

11

More than a month later, on the 14th day of July, 1914, the court of appeals, on
motion of the plaintiff, requested the supreme court to return the remittitur to
the court of appeals, which court then amended the same by incorporating
therein the statement that 'upon the argument of the appeal in this cause before
the court of appeals' there was submitted a brief, containing five specified
points. Of these in 'Point III.' alone counsel for the plaintiff for the first time,
and then only by way of argument, attempt to present a Federal question by
claiming that if the repealing act is to be regarded as an attempted
condemnation of the special franchises claimed by the plaintiff, it 'would be
unconstitutional in that such franchises were not taken by the state for public
use,' in violation of the 14th Amendment to the Constitution of the United
States.

12

It is significant to note that the court of appeals, in its decision, rendered before
the remittitur was thus amended, did not treat or regard the repealing act as 'an
attempted condemnation of the special franchises claimed by the plaintiff,' nor
did it afterwards so treat it.

13

Upon the record thus described the plaintiff in error comes into this court,
claiming that the act of the legislature of the state of New York of 1907 is a

valid, constitutional law, and that, it having been accepted and acted upon by
the plaintiff, contract and other property rights resulted which, under the
decision of the court of appeals, have been impaired or taken away by the
repealing act of 1913, in violation of the Constitution of the United States and
of the 14th Amendment thereto, and it therefore prays for a reversal of the
judgment of the supreme court, entered pursuant to the decision of the court of
appeals.
14

The defendant in error meets this claim of the plaintiff by a denial of the
jurisdiction of this court, for the claimed reason that the court of appeals
reached the conclusion that the Act of 1907 was unconstitutional and void
without reference to, and without giving any effect to, the subsequent repealing
statute.

15

The grants of the Act of 1907 are such that, if it was a valied law, upon their
being accepted, they constituted property or contract rights, of which the
plaintiff could not be deprived, and which could not be impaired, by subsequent
legislation, and, therefore, the denial by the defendant in error of the
jurisdiction of this court renders it necessary for us to determine whether the
court of appeals, in its decision, gave any effect to the repealing act. If it did not
give effect to that act, either expressly or by implication, this court is without
jurisdiction to review its decision, for the reason that the provisions of the
Constitution of the United States for the protection of contract rights are
directed only against the impairment of them by constitutions or laws adopted
or passed subsequent to the date of the contract from which such rights spring,
and do not reach decisions of courts construing constitutions or laws which
were in effect when the contract was entered into, as has been held by a long
line of decisions extending from Knox v. Exchange Bank, 12 Wall. 379, 20 L.
ed. 414, to Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 63i 56
.l. ed. 924, 32 Sup. Ct. Rep. 577.

16

In deciding this question, this court is not limited to the mere consideration of
the language of the opinion of the state court, but will consider the substance
and effect of the decision, and will for itself determine what effect, if any, was
given by it to the repealing act. Fisher v. New Orleans, 218 U. S. 438, 54 L. ed.
1099, 31 Sup. Ct. Rep. 57; Cross Lake Shooting & Fishing Club v. Louisiana,
224 U. S. 632, 56 L. ed. 924, 32 Sup. Ct. Rep. 577, and Louisiana R. & Nav.
Co. v. Behrman, 235 U. S. 164, 59 L. ed. 175, 35 Sup. Ct. Rep. 62. While this
court will exercise independent judgment as to the scope of the decision of the
state court, it will give to that decision that respectful and sympathetic attention
which is always due to the highest court of a state (Fisher v. New Orleans,
supra), with the presumption always in mind that the state courts will do what

the Constitution and laws of the United States require. Neal v. Delaware, 103
U. S. 370, 389, 26 L. ed. 567, 571; Chicago & A. R. Co. v. Wiggins Ferry Co.
108 U. S. 18, 27 L. ed. 636, 1 Sup. Ct. Rep. 614, 617; New Orleans v.
Benjamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 905, and Defiance
Water Co. v. Defiance, 191 U. S. 184, 48 L. ed. 140, 24 Sup. Ct. Rep. 63.
17

An examination of the opinion of the court of appeals shows that the court, in
its consideration of the repealing act of 1913, not only did not give to it an
effect which would impair any contract relation springing from the Act of 1907,
but that, on the contrary, it concluded that the repeal 'could not operate to
confiscate any valid franchise or property right which the Long Sault
Development Company had previously acquired under the act repealed,' and
that this conclusion made it necessary for the court to 'consider and determine
whether the legislature possessed the constitutional power to convey away the
state control over the navigation of the St. Lawrence river to the extent
attempted by the Act of 1907.' [212 N. Y. 8, 105 N. E. 849, Ann. Cas. 1915D,
56.]

18

And then, addressing itself to the constitutional problem thus stated, the court
proceeds, upon principle and authority, to decide: That, under the Constitution
of the state of New York, the power of the legislature of that state to grant lands
under navigable waters to private persons or corporations is limited to purposes
which may be useful, convenient, or necessary to the public; that it has no
power to so part with the title to such lands that the state may not in the future
improve navigation over them, if the public interest shall so require; and that
they are held by the state on such a trust for the public use that the legislature
has no power to authorize the conveyance of them to a private corporation to
maintain navigation thereover 'in as good condition as . . . at present,' thereby
parting for all time with its power to improve such navigation.

19

The court finds its principal authority for these legal positions in the decision of
this court in Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup.
Ct. Rep. 110, in which it was decided: That the title which a state holds to land
under navigable waters is different in character from that which it holds in land
intended for sale and occupation; in the former case it being held in trust for
the people of the state, in order that they may enjoy the navigation of the
waters and carry on commerce over them, free from obstruction or interference
by private parties; that this trust devolving upon the state in the public interest
is one which cannot be relinquishd by a transfer of the property; that a state can
no more abdicate its trust over such property, in which the whole people are
interested, so as to leave it under the control of private parties, than it can
abdicate its police powers in the administration of government and the

preservation of the peace, and that the trust under which such lands are held is
governmental, so that they cannot be alienated, except to be used for the
improvement of the public use in them.
20

This was a pioneer decision upon the subject at the time it was rendered by a
divided court, but the principles upon which it proceeds have been frequently
approved by this court. Morris v. United States, 174 U. S. 196, 43 L. ed. 946,
19 Sup. Ct. Rep. 649; United States v. Mission Rock Co. 189 U. S. 391, 406,
47 L. ed. 865, 869, 23 Sup. Ct. Rep. 606; Kean v. Calumet Canal & Improv.
Co. 190 U. S. 452, 481, 47 L. ed. 1134, 1145, 23 Sup. Ct. Rep. 651; and they
have been very widely approved by many of the highest courts of the states of
the Union. Rose's Notes on U. S. Reports, vol. 12, p. 270; Supp. 3, p. 291;
Supp. 5, p. 369.

21

Having arrived at these conclusions of law, the court of appeals proceeds to

make application of them to the Act of 1907, and concludes that that act, in
terms, virtually turns over to the corporation the entire control of the navigation
of the Long Sault rapids (provided that the consent of Congress to the grant
could be obtained), requiring only that the company shall pay certain stipulated
sums of money, and that it shall preserve the navigation of the river 'in as good
condition as . . . the same is at present,' and says that, no matter how much the
interest of the public might demand the improvement of the river in the future,
the state would be powerless to act, either directly or by constraint upon the
corporation; and for this reason it concludes that the act is, in substance, an
abdication of the trust upon which the state holds control over the St. Lawrence
river as navigable water and that, therefore, it is unconstitutional and void.
Whether this construction placed upon the act is the one which this court would
place upon it if coming to an original interpretation of it, we need not inquire;
for, under the authorities hereinbefore cited, the prohibition of the Constitution
against the impairing of contracts by state legislation does not reach errors
committed by state courts when passing upon the validity and effect of a
contract under a constitution or laws existing when it is made.

22

This discussion of the decision by the court of appeals makes it very clear that
that decision does not give any effect whatever to the repealing act of 1913, but
that, wholly independent of that act, and proceeding upon sound principle and
abundant authority, the court arrived at the conclusion that the Act of 1907 was
unconstitutional and void; and therefore it results that this case does not present
any question for decision under the Federal Constitution, and that, for want of
jurisdiction, the writ of error must be dismissed.

23

Mr. Justice McKenna and Mr. Justice Pitney dissent upon the ground that

chapter 355 of the Laws of 1907 of the state of New York, creating the Long
Sault Development Company and conferring upon it certain rights and
franchises, when accepted, as it was, by the company, constituted a contract
between the state and the company; that the repealing act and accompanying
legislation passed in 1913 (chaps. 452 and 453) had the effect of impairing the
obligation of that contract, in contravention of 10 of article 1 of the Federal
Constitution; and that effect was given to the latter legislation by the decision
under review.